The U.S. Supreme Court is allowing the Defense Department to continue enforcement of “Don’t Ask, Don’t Tell” as an appellate court considers litigation challenging the military’s gay ban.

According to the Supreme Court’s two-paragraph order, the justices’ decision to uphold a stay against an injunction prohibiting enforcement of “Don’t Ask, Don’t Tell” was considered by the full court, but U.S. Associate Justice Elena Kagan, who called the military’s gay ban “unjust” during her confirmation hearings, recused herself.

The order comes after Log Cabin Republicans, the organization responsible for the lawsuit, last week asked the Supreme Court to lift a stay on a district court-issued injunction prohibiting enforcement of the 1993 law. The U.S. Ninth Circuit Court of Appeals issued the stay after the Obama administration appealed the case to the court.

Log Cabin’s application vacate to stay was sent to U.S. Associate Justice Anthony Kennedy, the circuit justice for the Ninth Circuit, who could have made the decision on his own.

Last month, U.S. District Court Judge Virginia Phillips issued the injunction that would enjoined enforcement of “Don’t Ask, Don’t Tell” after she ruled in September that the law is unconstitutional.

In a statement, R. Clarke Cooper, executive director of Log Cabin Republicans, said his organization is “disappointed” the Supreme Court affirmed the stay but is “not surprised.”

“We are committed to pursuing every avenue in the fight against this failed and unconstitutional policy,” Cooper said. “Log Cabin will continue working to secure the votes needed for legislative repeal, and if necessary, we look forward to seeing President Obama’s attorneys in court next year to prove, once again, that ‘Don’t Ask, Don’t Tell’ doesn’t work.”

Alex Nicholson, executive director of Servicemembers United and sole named plaintiff in the lawsuit, called the Supreme Court’s decision to allow for continued enforcement of the military’s gay ban “unfortunate.”

“This just underscores the need to continue to put pressure on Senate Majority Leader Harry Reid to allow the defense authorization bill to come back up and take its first procedural step before the Senate’s Thanksgiving recess,” Nicholson said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association.
Follow Chris

I’m not entirely surprised that Justice Elena Kagan recused herself from the Don’t Ask, Don’t Tell case. It’s one of several cases that the Supreme Court will deal with in its current term that Justice Kagan will be required to recuse herself from, because of her previous role as Solicitor General in handling the cases.

In the particular case of Don’t Ask, Don’t Tell, Kagan’s public statement during her confirmation hearing that she considered the policy “unjust” left her with no choice but to recuse herself under the U.S. Code of Judicial Conduct, which requires federal judges to recuse themselves from cases in which the judge either has a vested personal interest, or has stated a firm public position that would make it impossible for that judge to be impartial in that case.